F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

Tenth Circuit

TENTH CIRCUIT

October 28, 2005

Clerk of Court

MARTIN MORRIS MOSES, SR.,

Petitioner-Appellant,

No. 05-5008

v.

(N. D. Oklahoma)

MIKE MULLIN, *

(D.C. No. 00-CV-501-CVE)

Respondent-Appellee.
ORDER
Before EBEL, McKAY, and HENRY, Circuit Judges.

Martin Morris Moses, Sr., an Oklahoma state prisoner proceeding pro se,
seeks a certificate of appealability (COA) to appeal the district courts decision
denying his 28 U.S.C. 2254 petition for a writ of habeas corpus. For the
reasons set forth below, we deny Mr. Mosess application for a COA and dismiss
this appeal.

In accordance with Rule 43(c)(2) of the Federal Rules of Appellate

Procedure, Mr. Mullin is substituted for Gary E. Gibson as the Respondent in this
action.
*

I. BACKGROUND
In Tulsa County District Court, a jury convicted Mr. Moses of (1) larceny
of merchandise from a retailer and (2) resisting arrest. In a second prosecution, a
jury convicted Mr. Moses of (3) two counts of assault and battery on a police
officer and (4) speeding. The court sentenced Mr. Moses to twenty years
imprisonment on the larceny conviction, one year on the resisting arrest
conviction, and twenty years on each of the assault and battery convictions. The
court ordered assault and battery sentences to be served concurrently with one
another but consecutively with the larceny and resisting arrest convictions.
In the trial on the larceny and resisting arrest charges, Mr. Moses
represented himself throughout the proceedings. In the second trial, Mr. Moses
began by proceeding pro se but then requested counsel midway through the
second day. The court then appointed a public defender to represent Mr. Moses
during the remainder of the trial, which concluded on the third day.
During the February 16, 1999 sentencing proceedings, Mr. Moses
requested that he be allowed to proceed pro se on appeal. He presented a signed
affidavit, which stated:
1.

The District Court has explained, and I fully

understand, the nature of the crime of which I have
been convicted and the severity of the punishment
imposed upon me.

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2.

I understand that I have a constitutional right to the

assistance of an attorney in taking an appeal of the
judgment against me to the Oklahoma Court of
Criminal Appeals and to have an attorney appointed
for me if I am unable to afford one.

3.

I understand the knowledge and experience an

attorney can provide me.

4.

I understand that the conviction(s) I am appealing,

if affirmed by the Oklahoma Court of Criminal
Appeals, might be used to enhance the punishment
for crimes for which I am convicted of in the future.

5.

I understand that in seeking to take my appeal

without assistance of an attorney I am assuming sole
responsibility for perfecting and pursuing my appeal
in accordance with the Rules of the Oklahoma Court
of Criminal Appeals, 22 O.S. 1981, Ch. 18, App.,
and in accordance with the laws of the State of
Oklahoma. I understand that, if I fail to so perfect
and pursue my appeal, neither the Oklahoma Court
of Criminal Appeals not any official of the State of
Oklahoma is required, or responsible, to correct
such failure.

6.

I understand that I am precluded from raising, in

any subsequent proceeding before this Court, any
issue which was raised or could have been raised in
my direct appeal. I also understand that I am
precluded from raising, in any subsequent
proceeding before any court, these issues which
could have been raised and any issue concerning the
effective assistance of counsel in taking my appeal.

7.

I acknowledge that I have not, in any way, been

compelled or coerced into waiving and relinquishing
my right to assistance of an attorney in taking my
appeal. I further acknowledge that I am competent
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to make said waiver and relinquishment and that it

is made knowingly, intelligently and voluntarily.
8.

I acknowledge that I have consulted an attorney

about my decision to waive an relinquish my right to
assistance of an attorney in taking my direct appeal
and understand the dangers and requirements I am
assuming in representing myself in this matter.

9.

I acknowledge that I have been fully advised on my

right to assistance of an attorney to take my appeal
and the consequences of wa[i]ving and relinquishing
same.

10.

I herewith voluntarily waive and relinquish my right

to an attorney, either retained or appointed, to
represent me on appeal, and request the Oklahoma
Court of Criminal Appeals to so find and allow me
to represent myself in all further matters relating to
this appeal.

Rec. doc. 20, exs. A & B. The Tulsa County District Court granted Mr. Mosess
request and allowed him to proceed pro se on appeal.
Mr. Moses commenced the appeals of his convictions and sentences pro se.
However, on September 21, 1999, he filed a motion with the Oklahoma Court of
Criminal Appeals (OCCA) requesting appointment of counsel. He asserted that I
am a lay person in the law and that combined with the fact that Im only allowed
two (2), three (3) visits per week to the law library . . . . Theres no way that I
could bring forth any type of appeal briefs with the time allotted. Rec. doc. 20,
ex. F. He also asserted that he had been unable to obtain certain documents,

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including certified copies of judgments and sentences and the transcript of a

revocation proceeding.
The OCCA directed Mr. Moses to file his request for counsel in the Tulsa
County District Court. Mr. Moses did so, but the court denied his motion. It
characterized Mr. Mosess motion as an eleventh-hour request, noting that eight
months had passed since he had requested to proceed pro se and that only ten days
remained before Mr. Mosess appellate brief was due. The court concluded that
Mr. Moses had waived his right to appellate counsel and had presented
insufficient grounds to rescind the waiver.
The OCCA then set a final deadline for the filing of Mr. Mosess opening
brief. Additionally, it found nothing in the record to dispute the [Tulsa County]
District Courts findings [that Mr. Moses had waived his right to appellate
counsel]. Id., ex. J. After Mr. Moses failed to submit appellate briefs, the
OCCA dismissed his appeals.
Mr. Moses filed a 28 U.S.C. 2254 habeas corpus petition challenging his
convictions. He asserted that (1) his waiver was invalid and, as a result, the state
had deprived him of his constitutional right to appellate counsel; and (2) state
officials had refused to provide him with complete records of two felony
convictions, in violation of his rights under the First, Fifth, Sixth, and Fourteenth
Amendments.
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The federal district court denied Mr. Mosess petition. As to the alleged
violation of the right to appellate counsel, the court concluded that [t]he record .
. . demonstrates convincingly that Petitioners waiver of appellate counsel was
made knowingly and intelligently. Rec. doc. 68, at 8 (Order, filed Jan. 7, 2005).
As to the alleged denial of access to records, the court concluded that the claim
was procedurally barred.

II. DISCUSSION
In order to obtain a COA, Mr. Moses must make a substantial showing of
the denial of a constitutional right. 28 U.S.C. 2253(c)(2). He may make this
showing by demonstrating that reasonable jurists would find the district courts
assessment of the constitutional claims debatable or wrong. Miller-El v.
Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)). [A] claim can be debatable even though every jurist of reason
might agree, after the COA has been granted and the case has received full
consideration, that [the] petitioner will not prevail. Id.
As the district court observed, under the Antiterrorism and Effective Death
Penalty Act (AEDPA), Mr. Moses is entitled to habeas corpus relief only if the
state courts adjudication of his claims resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
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determined by the Supreme Court of the United States. 28 U.S.C. 2254(d)(1).

Under the contrary to clause, a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case differently than this Court has
on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362,
412-13 (2000). Under the unreasonable application clause, a federal habeas
court may grant the writ if the state court identifies the correct governing legal
principle from [the Supreme Courts] decisions but unreasonably applies that
principle to the facts of the prisoners case. Id. at 413. Moreover, we must
presume that the state court factual findings are correct. The burden is on Mr.
Moses to rebut that presumption by clear and convincing evidence. See 28 U.S.C.
2254(e)(1). Applying these standards, we conclude that Mr. Moses is not
entitled to a COA for substantially the same reasons set forth in the district
courts well-reasoned January 7, 2005 order.
As to Mr. Mosess denial of appellate counsel claim, we note that the Tulsa
County District Court made factual findings that Mr. Moses was literate,
competent, and informed and therefore [could] intelligently waive and relinquish
his right to assistance of an attorney in perfecting/pursuing an appeal to the
[OCCA]. Rec. doc. 21, ex. D. Mr. Moses has failed to rebut this finding with
clear and convincing evidence.
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Moreover, the Tulsa County District Courts conclusion that Mr. Moses had
offered insufficient grounds to rescind the waiver was not unreasonable. In light
of his knowing and intelligent waiver, Mr. Moses failed to offer a sufficient
explanation as to why he was unable to prosecute his appeal pro se. See United
States v. Reddeck, 22 F.3d 1504, 1510-11 (10th Cir. 1994) (Once the defendant
has elected either to waive appointed counsel or waive the constitutional right to
defend himself, he does not have an unlimited right to thereafter change his mind
and seek the other path of representation.).
As to Mr. Mosess claim of denial of access to records, we agree with the
district court that he failed to present the claim to the state courts and has failed
to establish either cause and prejudice or a fundamental miscarriage of justice
sufficient to warrant our consideration of it. See Coleman v. Thompson, 501 U.S.
722, 750, (1991); Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir. 1998).

III. CONCLUSION
Accordingly, for substantially the same reasons set forth in the district
courts order, we DENY Mr. Mosess application for a COA and DISMISS this
appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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